The Commission on Legal Empowerment of the Poor, co-chaired by Hernando de Soto and Madeleine Albright, has just launched its final report “Making the Law Work for Everyone.” This report addresses the challenge of legal empowerment, or the process through which the poor become protected and are enabled to use the law to advance their rights and their interests, vis-à-vis the state and in the market.
The Commission has conducted 22 national consultation processes with representatives from local governments, academia, civil society, and grassroots movements during the past three years. The final report reflecting all these efforts is a fascinating and insightful document detailing how legal empowerment of the four billion excluded poor world-wide is the key to unlocking vital energies of entrepreneurship needed to end poverty. Notably, the Commission does not recommend any grand top-down reform schemes, but rather focuses on the need for reforms to be driven bottom up and focused on long-term institution building, not quick fixes:
In too many countries, the laws, institutions, and policies governing economic, social, and political affairs deny a large part of society the chance to participate on equal terms. The rules of the game are unfair. This is not only morally unacceptable; it stunts economic development and can readily undermine stability and security. The outcomes of governance – that is, the cumulative effect of policies and institutions on peoples’ lives – will only change if the processes of governance are fundamentally changed.
Creation of wealth rests upon various legal protections, norms, and instruments governing such things as business organizations, corporations, tradable assets, labor contracts, workers associations, venture capital, insurance, and intellectual property. While the same protections and instruments exist in many developing countries, the overwhelming majority has no way to access them. Notwithstanding this reality, the legal underpinnings of entrepreneurship, employment, and market interaction are often taken for granted by traditional approaches to development and standard economic theory.
The Commission concluded that there are four crucial pillars of legal empowerment that reinforce and rely on each other: access to justice and the rule of law, property rights, labor rights, and business rights (individual rights related to conducting business). Therefore, legal empowerment advances the rights and interests of the poor and excluded as citizens and economic actors alike.
The relationship between society, the state and the market is symbiotic. For example, the market not only reflects basic freedoms such as association and movement, but also generates resources to provide, uphold, and enforce the full array of human rights. (…) Some have cautioned against democratization while the rule of law remains imperfect. The Commission disagrees. Democracy and legal empowerment are kindred spirits, and are better synchronized than sequenced. In the absence of empowerment, societies lose the benefits that come from the free flow of information, open debate, and new ideas. Meanwhile, governments are not held accountable for unwise policies. (…) Strengthening democracy is essential to legal empowerment.
There are no technical fixes for development. For states to guarantee their citizens’ right to protection, systems can, and have to be changed, and changed systemically. The Commission’s recommended approach to legal empowerment is different from traditional approaches to legal and institutional reform and does not involve off-the-shelf blueprints for implementation. National and local contexts differ, creating a varied array of hurdles and opportunities for reform that must be taken into account. Success, however, is likely to share common features. Broad political coalitions, drawing leaders from across society and committed to championing policies, will smooth the way to legal empowerment and help overcome resistance, diversion, and delay.
Above all, the poor themselves must be an essential part of the reform process:
The poor are not the objects of legal empowerment, but its co-designers and facilitators. They must participate and provide feedback in all phases of the reform, including the close monitoring of the results. Reform must grow from the realities and the needs of the poor.